126th General Assembly
(As Passed by the General Assembly)
Reps. Brinkman, Seitz, Law, Schaffer, Webster, Wolpert, Domenick, Fende, Chandler, Daniels, McGregor, J., Combs, Barrett, Blessing, Calvert, Carano, Cassell, Coley, Collier, Distel, Evans, C., Flowers, Hartnett, Martin, McGregor, R., Patton, T., Perry, Raga, Reidelbach, Sayre, Taylor, Uecker, Wagner, Yuko
Sens. Niehaus, Schuring, Kearney, Grendell, Padgett, Roberts, Schuler, Clancy
Effective date: *
ACT SUMMARY
· Removes the limitation on the number of additional deferred compensation programs townships may offer to their officers and employees.
· Defines "board of township trustees" for the Limited Home Rule Township Law.
· Allows emergency resolutions to take immediate effect in limited home rule townships.
· Makes changes to the law authorizing a charge for certain multiple false fire alarms in townships.
· Establishes an alternative "direct" method for creating a fire and ambulance district.
· Increases to an amount not to exceed $150 the maximum registration fee for transient vendors in townships.
· Expands the definition of a "transient vendor" for purposes of the township registration provisions to include persons who attempt to arrange an appointment for a future estimate or sales call.
· Increases the duration limitation on township lighting contracts from ten to 20 years.
· Authorizes the issuance of cease and desist orders by law enforcement officers against D liquor permit premises that violate township noise control regulations.
· Authorizes certain townships that have used tax increment financing to pay the proceeds from the sale of a permanent improvement into their general fund under certain circumstances.
· Permits townships to create additional reserve balance accounts for any purpose for which they may lawfully expend township money.
· Permits the presentation of the minutes from a board of county commissioners' previous day's meeting to be in written form, instead of being read aloud by the board's clerk.
TABLE OF CONTENTS
Deferred compensation plans for certain public employees
Definition of "board of township trustees"
False fire alarms in townships
Fees for transient vendors in townships
Background law and definitional expansion
Enforcement of township noise control regulations
Disposition of the proceeds from the sale of township permanent
improvements
New township reserve balance accounts
County commissioners' board meeting minutes presentation
CONTENT AND OPERATION
Continuing law creates a deferred compensation program for eligible public employees that is administered by the Ohio Public Employees Deferred Compensation (OPEDC) Board. That law permits municipal corporations, counties, townships, park districts, conservancy districts, sanitary districts, health districts, public library districts, county law libraries, public institutions of higher education, and school districts to provide separate authorized plans or programs for deferring compensation of their officers and employees in addition to the OPEDC Board's program. However, under former law, counties, townships, park districts, conservancy districts, sanitary districts, health districts, public library districts, and county law libraries were limited to no more than two additional deferred compensation programs. (R.C. 148.04 and 148.06.)
The act permits townships, like municipal corporations, public institutions of higher education, and school districts under continuing law, to provide additional authorized deferred compensation plans or programs without any limitation on the number that can be offered. But similar to continuing law applicable to municipal corporations, public institutions of higher education, and school districts, a township must offer additional plans or programs that include a reasonable number of options to its officers or employees for the investment of deferred compensation--including annuities, variable annuities, regulated investment trusts, and other investments approved by the township--that will assure the desired tax treatment of their deferred compensation. (R.C. 148.04(E) and 148.06.)
The Limited Home Rule Township Law refers in several of its provisions to the governing body of such a township as the "board of township trustees," leading to confusion for some individuals as to whether a given reference in the Law is only to the board of township trustees of a limited home rule township or the board of township trustees of any township. To clarify these references in the Law, the act provides a definition of "board of township trustees" for the Law, specifying that, except in those sections that provide for the creation of a limited home rule township (before the board could be one of such a township), a reference to a board of township trustees is to the board of township trustees of a limited home rule township. (R.C. 504.021.)
Under the Limited Home Rule Township Law, an emergency resolution formerly took effect ten days after it was filed with the township fiscal officer, unless a later time was specified in the resolution. The act eliminates this delay in effect and specifies instead that an emergency resolution takes effect immediately upon its passage. (R.C. 504.11(B).)
Under former law, a board of township trustees could assess a charge for responding to a false fire alarm if (1) the fire department of the township, township fire district, or joint fire district, or a private fire company that contracted with any of those political subdivisions for fire protection, responded to a false alarm from an automatic fire alarm system at a commercial establishment or residential building and (2) the board of township trustees gave a written notice to the premises' owner and lessee (if any) by certified mail that it might assess a stated charge of $300 or less for each subsequent false alarm by that system that occurred "within a period of 30 days after any false alarm by that system." After that notice, the township could charge for a false alarm without further notice. (R.C. 505.391.)
The act changes the false alarms for which a township may charge after the provision of the written notice, to subsequent false alarms occurring after three false alarms by the system within the same calendar year (R.C. 505.391(A)).
Former law provided that if a charge for a subsequent false alarm was not paid within 60 days after the owner or lessee received by certified mail a written notice that the charge had been assessed, the charge had to be entered upon the real property tax list, became a lien upon the property, and had to be collected as taxes are collected. Collected charges (whether by normal payment or through the lien procedure) were required to be deposited into the township general fund. (R.C. 505.391.)
The act changes the procedure for unpaid false alarm charges by providing a 30-day notice before an unpaid charge becomes a lien. Under the act, if payment of the bill assessing a charge is not received within 30 days, the township fiscal officer must send a notice by certified mail to the manager and the owner of the real estate of which the commercial establishment is a part, or to the occupant, lessee, agent, or tenant and the owner of the real estate of which the residential building is a part, indicating that failure (1) to pay the bill within 30 days or (2) to show just cause within 30 days why the bill should not be paid will result in the assessment of a lien on the real estate in the amount of the bill. If payment is not received or just cause for nonpayment is not shown within those 30 days, the amount of the bill must be entered upon the tax duplicate, is a lien upon the real estate upon that entry, and must be collected as other taxes. The act requires charges so collected, instead of being deposited into the township general fund, to be earmarked in the township treasury for use for fire services.[1] (R.C. 505.391(B).)
Under former law, in order to form a fire and ambulance district, the governing boards of a joint fire district and of a joint ambulance district had to negotiate how to combine into a single "fire and ambulance" district that would deliver both fire and ambulance services to the geographic area covered by those joint districts. That geographic area had to be exactly the same in order for the joint districts to combine. The governing boards then were required to adopt a joint resolution ratifying the negotiated agreement and specifying when the new fire and ambulance district came into being. (R.C. 505.375.)[2]
The act establishes an additional way to form a fire and ambulance district. Under the act, the boards of township trustees of one or more townships and the legislative authorities of one or more municipal corporations, or the legislative authorities of two or more municipal corporations, or the boards of township trustees of two or more townships, are permitted to negotiate an agreement to form a fire and ambulance district. The agreement must be ratified by the adoption of a joint resolution by a majority of the members of each board of township trustees and/or of each municipal corporation legislative authority involved. The joint resolution must specify a date on which the district will come into being. (R.C. 505.375(A)(1)(a).)
If a joint fire district or a joint ambulance district is dissolved to facilitate creating a fire and ambulance district via this additional method, the negotiating townships and/or municipal corporations forming the new district may transfer to the new district for its use any of the funds on hand, moneys and taxes in the process of collection, credits, and real and personal property apportioned to them from the dissolved joint district (R.C. 505.375(A)(1)(b)).
Continuing law provides that a board of township trustees may require the registration of all transient vendors within the unincorporated territory of the township and regulate the time, place, and manner in which they may sell, offer for sale, or solicit orders for future delivery of goods. "Transient vendors" formerly were generally defined as persons who opened a temporary place of business for the sale of goods or who, on the streets or while traveling about the township, either sold or offered for sale goods, or solicited orders for future delivery of goods where payment was required before the delivery of the goods. "Transient vendors" formerly did not include (1) persons who represented any of certain Ohio tax-exempted entities that notified a board of township trustees that its representatives were present in the township for the purpose of either selling or offering for sale goods, or soliciting orders for future delivery of goods, or (2) licensed auctioneers. (R.C. 505.94(A) and (B)(2).)
The act expands the preceding general definition of a "transient vendor" to include any person who, on the streets or while traveling about a township, attempts to arrange an appointment for a future estimate or sales call. It correspondingly amends the preceding exception to the definition to include any person who represents an Ohio tax-exempt entity that notifies the board of township trustees that its representatives are present in the township for the purpose of attempting to make those arrangements. (R.C. 505.94(B)(2).)
Under former law, when registration was required of all transient vendors, a reasonable registration fee not to exceed $75 could be charged for the registration period. The registration was valid for at least a 90-day period. The act increases the permissible fee to one "not to exceed $150" for such a registration period. (R.C. 505.94(A).)
Under continuing law, a board of township trustees, upon making certain determinations, may provide artificial lights for any road, highway, public place, or building under its control or for any of the unincorporated territory of the township. If the township procures lighting under a contract (rather than installing a lighting system itself) and if the total estimated cost of the contract exceeds $25,000, the board must competitively bid the contract. Formerly, such a lighting contract could not exceed a ten-year period. (R.C. 515.01.)
The act increases the contract duration limitation to a 20-year period (R.C. 515.01).
Unaffected provisions. Under continuing law, a board of township trustees may adopt regulations and orders that are necessary to control noise within the township's unincorporated territory that is generated at any premises to which a D liquor permit has been issued or that is generated within any areas zoned for residential use. Persons engaging in certain agricultural activities, in coal mining and reclamation operations, in surface mining, and in certain crude oil or natural gas well, pipeline, and other activities are exempt from township noise control regulations and orders under this continuing law. (R.C. 505.172(B) and (C).)
Changes
made by the act. Under
former law, with the exception of businesses operating at D liquor permit
premises, those noise control regulations or orders also generally did
not apply to businesses or industries in existence and operating on October 20,
1999 (the effective date of the last amendment to the law); they did apply to
those entities, however, if any new operation or expansion resulted in
substantially increased noise levels from those generated on that date. The act amends these provisions and, in
doing so, clarifies that a township noise control regulation or order applies
to any premises to which a D liquor permit has been issued by the
Division of Liquor Control--regardless of whether the premises was in existence
and operating on the effective date of the last amendment to the law (October
20, 1999) or whether it came into existence and operation after that date.[3] It also specifies that a township noise
control regulation or order applies
to any other business or industry in existence and operating on that date--except
those exempt under the continuing law discussed above. (R.C. 505.172(C) and (D).)
Continuing law also provides that any person allegedly aggrieved by a violation of a township noise control regulation or order may seek in court a declaratory judgment, an injunction, or other appropriate relief against the violator. The court may award reasonable attorney's fees to the prevailing party for work reasonably performed. (R.C. 505.172(F).)
The act also requires a board of township trustees that adopts a noise control regulation or order to seek an injunction against each person that commits an act or practice that violates the regulation or order. In this injunction action, the court also may award the prevailing party reasonable attorney's fees for work reasonably performed. (R.C. 505.172(F).)
In addition, the act authorizes a law enforcement officer with jurisdiction in a township having a noise control regulation or order to issue a cease and desist order to a D liquor permit premises when the officer has reasonable cause to believe that the premises has violated the regulation or order and, as a result of the violation, has caused, is causing, or is about to cause substantial and material harm.[4] The cease and desist order would require the premises to cease and desist from the activity violating the regulation or order and must be served personally upon the owner, operator, manager, or other person in charge of the premises immediately after its issuance by the officer. Thereafter, the township may publicize or otherwise make known to all interested persons that the cease and desist order has been issued. (R.C. 505.172(G).)
The act provides that such a cease and desist order must specify the particular conduct that is subject to it and inform the person upon whom it is served that the premises will be granted a hearing in the municipal or county court with jurisdiction over the premises regarding the order's operation and the possible issuance of an injunction or other appropriate relief (see below). The premises must comply with the order immediately upon its receipt. (R.C. 505.172(G).)
Upon service of the order, the township's law director or, if the township does not have a law director, the prosecuting attorney must file a civil action in the municipal or county court mentioned above seeking to confirm the cease and desist order and seeking an injunction or other appropriate relief against the premises. The premises' owner, operator, manager, or other person in charge may file a motion in that civil action for a stay of the cease and desist order for good cause shown, pending the court's rendering its decision in the action. The municipal or county court must set a date for a hearing, hold the hearing, and render a decision in the action not more than ten days after the order's date--otherwise, the order is terminated. (R.C. 505.172(G).)
The Tax Levy Law formerly provided that, if a political subdivision sold permanent improvements, other than utilities, the amount received from the sale had to be paid into the sinking fund, the bond retirement fund, or a special fund for the construction or acquisition of permanent improvements. The act creates an exception to this generally continuing provision for certain townships. (R.C. 5705.10.)
Under the act, a township that has a population greater than 15,000 according to the most recent federal decennial census and that has used township tax increment financing for real property in the township may pay proceeds from the sale of a permanent improvement of the township into its general fund if both of the following conditions are satisfied (R.C. 5705.10(F) and (G)):
(1) The township fiscal officer determines that all foreseeable "public infrastructure improvements" to be made in the township in the ten years immediately following the date the permanent improvement is sold will have been financed through township tax increment financing on or before the date of the sale.[5] Written certification of this determination must be made part of the township's records.
(2) The permanent improvement being sold was financed entirely from moneys in the township's general fund.
Under continuing law, townships, like other taxing authorities, may establish by resolution reserve balance accounts to accumulate currently available resources for the following purposes: (1) to stabilize budgets against cyclical changes in revenues and expenditures, (2) to provide for the payment of claims under a self-insurance program, or (3) to provide for the payment of claims under a retrospective ratings plan for workers' compensation. For purposes (2) and (3) above, only one reserve account may be established for each purpose. Money in a reserve balance account created under continuing law is not considered as an unencumbered balance or revenue of the township for purposes of annual budget reviews by the county budget commission. (R.C. 5705.13(A)--not in the act.)
The act permits a township to establish by resolution reserve balance accounts, in addition to those described above, to accumulate currently available resources for any purpose for which the board of township trustees may lawfully expend township money other than the three purposes listed above.[6] Money may be transferred to these new reserve balance accounts from another township fund or account only if money in that fund or account may lawfully be expended for the purpose for which the new reserve balance account is created. (R.C. 5705.132.)
A reserve balance account created under the act's provisions may exist for not more than five fiscal years beginning with the first fiscal year in which money is credited to the account. But, more than one reserve balance account may be established under the act's provisions. The total amount of money credited to all of the reserve balance accounts established under the act cannot exceed at any time in any fiscal year 5% of the total of the township's revenue from all sources for the preceding fiscal year and any unencumbered balances carried over to the current fiscal year from the preceding fiscal year. And, money in such an account can be expended only for the purpose for which the account is established. (R.C. 5705.132.)
The board of township trustees may rescind the resolution establishing a reserve balance account before the account's expiration. It also may extend the life of a reserve balance account, subject to the five-fiscal year ceiling mentioned above. Upon the expiration or rescission of a reserve balance account created under the act, any unexpended balance in it must be transferred to the fund or account from which money in the account was originally transferred. If money was transferred from multiple funds or accounts, a pro rata share of the unexpended balance must be transferred to each of them proportionate to the amount originally transferred from that fund or account. (R.C. 5705.132.)
Like reserve balance accounts created under continuing law, money in a reserve balance account created under the act is not considered as an unencumbered balance or revenue of the township for purposes of annual budget reviews by the county budget commission. It also is not considered as an unencumbered balance or revenue for purposes of apportioning the county's undivided local government fund and the undivided local government revenue assistance fund. (R.C. 5705.132, 5705.35(A), 5705.36(A)(1)(c), 5747.51(E), and 5747.62(E).)
Under former law, immediately upon the opening of each day's session of the board of county commissioners, the record of the proceedings of the previous day's session had to be read by the board's clerk. Then, if it was correct, the board members had to approve and sign the record. (R.C. 305.11.)
The act permits each county commissioner to be provided with a written form of the record in lieu of having the clerk read it, and then, if it is correct, the commissioners would approve and sign the record. (R.C. 305.11.)
HISTORY
|
ACTION |
DATE |
|
|
|
|
Introduced |
10-18-05 |
|
Reported, H. Local
& Municipal Gov't & |
|
|
Passed House (94-0) |
03-01-06 |
|
Reported, S. State & Local Gov't & Veterans Affairs |
03-29-06 |
|
Passed Senate (31-0) |
03-29-06 |
|
House concurred in Senate amendments (96-0) |
05-09-06 |
06-hb385-126.doc/jc
* The Legislative Service Commission had not received formal notification of the effective date at the time this analysis was prepared. Additionally, the analysis may not reflect action taken by the Governor.
[1] The act repeals former law's general requirement that "charges collected" under R.C. 505.391 be deposited into the township general fund. It is not clear whether charges collected other than pursuant to the new lien procedure will continue to be deposited into the township general fund or also must be earmarked in the township treasury for use for fire services.
[2] This method of creating a fire and ambulance district continues to be available under the act. It is relocated to division (A)(2) of R.C. 505.375.
[3] The act specifically states that R.C. 505.172 does not authorize a township to enforce a noise control regulation or order against a D liquor permit premises that is located outside the township's unincorporated territory (R.C. 505.172(H)).
[4] The act defines a "law enforcement officer" as a sheriff, deputy sheriff, constable, police officer of a township or joint township police district, marshal, deputy marshal, or municipal police officer (R.C. 505.172(A)).
[5] The act's references to the township having "declared one or more improvements . . . to be a public purpose under section 5709.73" and to financing of permanent improvements "through resolutions adopted under section 5709.73" are to provisions of the Township Tax Increment Financing Law. Under that Law, by cross-reference to the Municipal Tax Increment Financing Law, a "public infrastructure improvement" is defined to include, but is not limited to, public roads and highways; water and sewer lines; environmental remediation; land acquisition, including acquisition in aid of industry, commerce, distribution, or research; demolition, including demolition on private property when determined to be necessary for economic development purposes; stormwater and flood remediation projects, including those projects on private property when determined to be necessary for public health, safety, and welfare; the provision of gas, electric, and communications service facilities; and the enhancement of public waterways through improvements that allow for greater public access (R.C. 5709.40(A)(7) and 5709.73(A)(5)--not in the act).
[6] The resolution must state the specific purpose for which a reserve balance account is established, the fund within which it is established, the fund or account from which money will be transferred to it, the number of years it will exist, the maximum total amount of money that may be credited to it during its existence, and the maximum amount of money to be credited to it each fiscal year it exists (R.C. 5705.132).